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(영문) 서울중앙지방법원 2013.12.11 2013가합539247
손해배상(기)
Text

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. On August 16, 2012, the Plaintiff Company A (hereinafter “A”) was declared bankrupt on August 16, 2012 by Busan District Court 2012Hahap4, and is currently in bankruptcy proceeding. The Plaintiff is a person appointed as a bankruptcy trustee of A.

B. A’s loans and limited liability company D’s officers 1) Limited Liability Company D(hereinafter “D”).

A’s special purpose corporation (SPC) established on July 19, 2005 for the purpose of the funeral and graveyard management business, and was actually operated by A. A after having been granted loans of KRW 12,752,195,172 from A around January 8, 2007.2) The recommendation of EM&A (M&A) in charge of accounting affairs for a special purpose corporation A was made, Defendant B was the representative director from August 4, 2008 to February 18, 201, Defendant C was registered respectively in the corporate register of D from D to February 18, 201, respectively.

The defendants held D's shares as a second-name shareholder each 500 shares with the money borrowed from A.

C. Defendant B received benefits, etc.: (a) received KRW 71,250,000 in total from January 2009 to February 201; and (b) received KRW 78,494,00 in total from May 2005 to February 201 from February 201 from Defendant C, respectively, as benefits, etc.

D Property status D is currently insolvent, such as 12,752,195,172 won per loan principal to A.

【Ground of recognition】 The fact that there is no dispute, Gap 1-3 evidence, Eul 1-4 evidence (including each number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The Plaintiff’s assertion that the Defendants asserted the principal and interest of loan against D shall be deemed the preserved right, and shall claim restitution of unjust enrichment or damages against the Defendants in subrogation of D.

On this issue, the defendants asserted that A has a 100% share of D in substance, and only took the form of loan in order to carry out D's intended business, so there is no preserved bond.

(b) The facts that D constitutes a special purpose corporation A, although there is no dispute between the Parties, and A.

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